There are generally two theories by which a provider of intoxicating beverages can be liable for the injury or death of another: (1) Liability of a Licensed Establishment; and (2) Liability of a Social Host.
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G.L. c.138, §69, provides that, "No alcoholic beverage shall be sold or delivered on any premises ... to an intoxicated person." In 1968, the Supreme Judicial Court recognized a cause of action against an establishment that sold alcoholic beverages to an intoxicated person who negligently operated an automobile causing injury to a third person. See Adamian v. Three Sons, Inc., 353 Mass. 498 (1968).
To establish a cause of action for which the tavern owner and bartender are liable for injuries to third parties, one must prove that "(1) a patron of premises (2) who is served intoxicating liquors (3) while he is intoxicated (4) and under circumstances from which the defendant knew or reasonably should have known that he was intoxicated when served (5) operates a motor vehicle while intoxicated (6) such operation was reasonably foreseeable by the defendant (7) and a person of ordinary prudence would have refrained from serving liquor to that patron in the same or similar circumstances (8) and such operation causes the plaintiff's death or injury within the scope of the foreseeable risk." Cimino v. Milford Keg, Inc., 385 Mass. 323, 331 n. 9 (1982).
The proprietor of a liquor store owes a similar duty of care to the public, which may also be violated by selling liquor to minors. Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 10-12 (1983).
A person or entity may be liable for the serving of alcohol to an intoxicated person who injures himself only where it can be proven that there has been "willful, wanton or reckless conduct on part of the licensee or such person or entity." G.L. c. 231, §85T. When the injured person is an underage adult, however, "the injured plaintiff need not prove willful, wanton or reckless conduct on the part of the establishment, but may prevail on a showing that the establishment was negligent in serving alcoholic beverages to an underage patron." Nunez v. Carrabba's Italian Grill, Inc., 448 Mass. 170, 171, 859 N.E.2d 801, 802 (2007).
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A social host is liable "to a person injured by an intoxicated guest's negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person's injury." McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 162 (1986).
A duty on the part of a social host to prevent a guest from becoming intoxicated and harming others while driving is only imposed in cases where the host can control and therefore regulate the supply of liquor. The ability to control is not present when the liquor belongs to the guest. Makynen v. Mustakangas, 39 Mass.App.Ct. 309 (1995) (citing Ulwick v. DeChristopher, 411 Mass. 401, 406, 582 N.E.2d 954 (1991)). Additionally, based on the specific circumstances of the case, one who buys drinks for another at a licensed establishment may also be liable as a social host for injuries to third parties. Makynen v. Mustakangas, 39 Mass.App.Ct. 309 (1995). But see Dube v. Lanphear, 69 Mass.App.Ct. 386, 868 N.E.2d 619 (2007) (holding that companions of intoxicated driver, who were with driver at a bar, were not subject to social host liability as they did not control the liquor supply and did not control driver's ability to continue to drink).
It is well established that a social host has no duty to an adult guest who becomes intoxicated and injures himself. This also extends to an adult but underage drinker. Hamilton v. Ganias, 417 Mass. 666 (1994); Sampson v. MacDougall, 60 Mass.App.Ct. 394 (2004).
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Liability with respect to injuries caused by dogs is strict liability upon the owner or keeper of dogs to persons injured by them. G.L. c. 140, §155 provides:
"If any dog shall do any damage to either the body or property of any person, the owner or keeper, or if the owner or keeper be a minor, the parent or guardian of such minor, shall be liable for such damage, unless such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. If a minor, on whose behalf an action under this section is brought, is under seven years of age at the time the damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant in such action."
This statute imposes strict liability upon the owner or keeper of a dog which causes personal injury or property damage without the necessity of proving that the owner or keeper was negligent or otherwise at fault, or that he knew that the dog had any dangerous propensities. As a result liability exists when a dog injures someone by biting, scratching, jumping or the like, whether the dog did so with viciousness or merely in play. G.L. c. 140, §155.
A "keeper" has been defined as one who has assumed custody, management and/or control of a dog, ie. one who has fed, disciplined, played and/or trained the animal. Examples include a regular dog walker/sitter and veterinary technician.
Damages include, consequential damages and compensatory damages, including all damage and loss proximately caused by the dog, such as pain and suffering, medical expenses, and diminution in earning capacity.
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With the exception of G.L. c. 140, § 155, which applies exclusivity to dogs, claims for injury or damage against owners of domestic animals are subject to general common law principles. Accordingly, a plaintiff will not be able to recover unless there is evidence that the domestic animal's owner or keeper was aware that the animal had vicious propensities and that the plaintiff's "injury followed as the natural and probable consequence of the defendant's wrong in keeping such an animal." Goodwin v. E.B. Nelson Grocery Co., 239 Mass. 232, 234 (1921) (holding there was insufficient evidence to warrant finding against cat owner).
In cases involving claims of damage or injury by domestic animals such as cows or horses that are trespassing or have escaped, however, it is unnecessary to show that the animal had vicious propensities and owners of such animals are held to a duty of ordinary care in restraining them. See Walker v. Nickerson, 291 Mass. 522, 526-527 (1935).
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Recovery for wrongful death claims is codified in G.L. c. 229. The wrongful death statute established a "consortium" type recovery in which the measure of damages is the loss to certain identified family members of the decedent. G.L. c. 229, §2 states:
"A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (3) operates a common carrier of passengers and by his negligence causes the death of a passenger, or (4) operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (5) is responsible for a breach of warranty arising under Article 2 of chapter one hundred and six which results in injury to a person that causes death, shall be liable in damages."
A wrongful death suit must be filed by the administrator or executor of the estate. A formal probate court appointment is required. See Marco v. Green, 415 Mass. 732 (1993).
Damages recoverable for wrongful death include: reasonably expected net income of the decedent over his or her work life expectancy; loss of relationship (consortium) to family members; conscious pain and suffering; medical expenses; funeral and burial expenses; punitive damages (only if willful, wanton or reckless); and prejudgment interest from the date of the filing of the lawsuit. G.L. c. 229, § 2.
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It is well settled in Massachusetts that "a physician is not liable to a child who was born because of the physician's negligence." Viccaro v. Milunsky, 406 Mass. 777, 783 (1990) (citations omitted). However, Massachusetts does permit the parents of a child born with a congenital or genetic disorder to recover against a negligent physician. Id. at 780-81.
The parents may recover for emotional distress suffered as a result of the physician's negligence and any physical harm caused by that emotional distress. Id. at 782.
In addition, the parents may recover "the extraordinary medical, educational, and other expenses that are associated with and are consequences of the disorder." Id. at 780.
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"In order to establish such a claim, the plaintiff, at a minimum, must establish that the defendant 'made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff reasonably relied upon the representation as true and acted upon it to his damage.'" Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 458 (2002) quoting Danca v. Taunton Sav. Bank, 385 Mass. 1, 8, 429 N.E.2d 1129 (1982).
"It is sufficient to show 'proof of a statement made, as of the party's own knowledge, which is false, provided the thing stated is not merely a matter of opinion, estimate, or judgment, but is susceptible of actual knowledge'; actual intent to deceive on the part of the defendants need not be shown." Russell, 437 Mass. at 458-459.
In a professional context, a plaintiff may recover in an action for negligent misrepresentation by establishing the following:
"One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." That liability is limited to "loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction." Nycal Corp. v. KPMG Peat Marwick LLP, 426 Mass. 491, 496 (1998), quoting Restatement (Second) of Torts § 552 (1977).
The plaintiff seeking to recover for negligent misrepresentation must establish that the defendant acted unfairly or unreasonably. See Nycal Corp. v. KPMG Peat Marwick LLP, 426 Mass. 491 (1998); Fox v. F & J Gattozzi Corp., 41 Mass.App.Ct. 581 (1996); Restatement (Second) of Torts § 552 (1977).
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A residential landlord may be held liable for injuries caused by his negligent failure to maintain the rented premises in reasonably safe condition, after he knew or reasonably should have known of the defect and had a reasonable opportunity to repair it, even in the absence of an express agreement to keep the rented premises in repair. The landlord's obligation is to act as a reasonable person under all the circumstances. See Young v. Garwacki, 380 Mass. 162 (1980). But see Humphrey v. Byron, 447 Mass. 322, 323, 850 N.E.2d 1044 (2006) (declining to impose such a duty on commercial landlords).
A landlord is also required by statute to exercise reasonable care to correct an "unsafe condition" on rented premises of which he has been given notice. G.L. c.186, §19. The statute provides that a landlord of commercial and residential real estate (except an owner-occupied two- or three-family dwelling) must, within a reasonable time following receipt of a written notice of an unsafe condition from a tenant forwarded by registered or certified mail, exercise reasonable care to correct the unsafe condition. A tenant who is injured as a result of the failure of the landlord to correct the unsafe condition within a reasonable time has "a right of action in tort against the landlord or lessor for damages." G.L. c. 186, §19.
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The legal principles concerning the duty owed by a landlord to the invitees or guests of his tenant are the same as those concerning the duty owed to the tenant.
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Under Massachusetts law a property owner is not obligated to provide a place of maximum safety, but only to maintain his property in a reasonably safe condition for all those lawfully on the premises in view of all the circumstances. Barry v. Beverly Enterprises-Massachusetts, Inc., 418 Mass. 590, 592-593 (1994); Mounsey v. Ellard, 363 Mass. 693, 703 (1973).
The duty of reasonable care does not make a landowner an insurer of his property, nor does it impose unreasonable maintenance burdens. Aylward v. McCloskey, 412 Mass. 77, 80 (1992).
A property owner ordinarily has no duty to warn of a risk that would be obvious to persons of average intelligence. Young v. Atlantic Richfield Company, 400 Mass. 837, 512 N.E.2d 272, 276, cert. den. 484 U.S. 1066 (1987).
The plaintiff is obligated to use her faculties for her own protection and to guard herself from all obvious hazards. Benjamin v. O'Connell & Lee Manufacturing Co., 334 Mass. 646, 138 N.E.2d 126, 128 (1956).
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A landowner is only liable for injuries caused by defects existing on the owner's property. Sullivan v. Brookline, 416 Mass. 825, 827 (1994); Aylward v. McCloskey, 412 Mass. 77, 79 (1992).
The courts in Massachusetts do not consider the natural accumulation of snow and ice an actionable property defect. Sullivan, 416 Mass. at 827; Aylward, 412 Mass. at 79. See also Newman v. Kurpaska, 1994 Mass.App.Ct.. Div. 91 (judgment for defendant because evidence of freezing rain and snow the night before demonstrated a natural accumulation of snow and, therefore, no defect on the premises existed).
Even where a property owner has shoveled snow, thereby exposing ice underneath, and a person slips on that ice, there is no liability attributable to the defendant landowner. Sullivan v. Town of Brookline, 416 Mass. 825, 828 (1994). Nor does liability attach where a property owner removes a portion of snow or ice and a person slips on what is left behind as a natural accumulation. Id. A landowner may be liable, however, when some act or failure to act has changed the snow or ice from a natural to an unnatural accumulation. Id. at 827.
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In a case involving premises liability, "[t]he obligation of one who controls business premises is to use due care to keep the premises provided for the use of its patrons in a reasonably safe condition, or at least to warn them of any dangers that might arise from such use, which are not likely to be known to them, and of which the defendant knows or ought to know." Oliveri v. Massachusetts Bay Transportation Authority, 363 Mass. 165, 167 (1973). "The length of time the law allows to the defendant for discovery and removal or warning of the dangerous condition is governed by the circumstances of each case." Deagle v. Great Atlantic and Pacific Tea Co., 343 Mass. 263, 265 (1961).
The typical analysis involves a review of the "length of time the condition is present and the opportunity for discovery on the facts of the case." Id.
Importantly, in the recent case of Sheehan v. Roche Brothers Supermarkets, Inc., 448 Mass. 780, 863 N.E.2d 1276 (2007), the Supreme Judicial Court adopted the "mode of operation" approach to determine premises liability. In that case, a plaintiff was injured after slipping on a grape at a grocery store. The trial court granted the store's motion for summary judgment and held that there was insufficient evidence that the defendant was on notice of the hazardous condition. The Supreme Judicial Court reversed the trial court's decision and noted that Massachusetts historically has followed the traditional approach governing premises liability, requiring that a plaintiff show that the defendant had actual or constructive notice of the hazardous condition. In light of the trend away from clerk-assisted grocers to modern self-serve grocery stores, the Court held that the plaintiff can satisfy the notice requirement by demonstrating that an injury was attributable to a reasonably foreseeable dangerous condition that is related to the owner's self-service business or "mode of operation."
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"A landowner must act as a reasonable [person] in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." Mounsey v. Ellard, 363 Mass. 693, 708, 297 N.E.2d 43 (1973).
"This duty, as applied to risks posed by a third party, requires the property owner to exercise reasonable care in preventing injury to a lawful visitor caused by the reasonably foreseeable acts of another, whether those acts are accidental, negligent or intentional." McKinney-Vareschi v. Paley, 42 Mass.App.Ct. 953, 954 (1997) citing Flood v. Southland, 416 Mass. 62, 72 (1993).
"Reasonable foreseeability that a third party will cause harm to the plaintiff is determined by examining all the circumstances." McKinney-Vareschi, 42 Mass.App.Ct. at 954 citing Flood, 416 Mass. at 72. "Liability may be imposed if a defendant negligently failed to guard against the consequences of reasonably foreseeable criminal conduct." Poskus v. Lombardo's of Randolph, Inc., 423 Mass. 637, 72, 639-640, 670 N.E.2d 383 (1996).
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A "public employer" is liable for any personal injury, death, or property damage caused by the negligent or wrongful act or omission of any "public employee" while acting within the scope of his office or employment in the same manner and to the same extent as a private individual under like circumstances, with certain exceptions including the following:
- There may not be any levy of execution on any real or personal property of the public employer to satisfy a judgment;
- There is no liability for interest prior to judgment, or for punitive damages, and
- The limit of liability is $100,000. G.L. c. 258, § 2.
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Unlike many other torts, the tort of trespass is complete without a showing of actual damages, i.e., even if he has suffered no actual damages, the plaintiff may recover nominal damages. Like all tortfeasors, a trespasser is liable for all damage flowing directly from his entry. Unlike a tortfeasor who is merely negligent, however, a trespasser, having committed an intentional tort, is responsible for all tangible and visible damage to the land resulting from his entry, even though the damage could not reasonably have been anticipated at the time of the illegal entry.
The measure of damages in a case of trespass to real property which results in permanent damage to the affected premises is the difference in the fair market value of the injured property before and after the injury. An intentional and continuing trespass to real estate, such as the drainage of water from the defendant's land onto the plaintiff's land, entitles the plaintiff to both injunctive relief and monetary damages. The measure of damages for a continuing trespass which might be terminated by an injunction is the loss in rental value of the property while the injury continues and the reasonable expense of repairing the injury. Fortier v. Town of Essex, 52 Mass.App.Ct. 263 (2001).
Under appropriate circumstances, damages for mental or emotional suffering resulting from a trespass to land may be recovered.
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Liability for a private nuisance caused by the flow of surface waters from one property to an adjoining property depends on whether the landowner is making reasonable use of his land, even if there is harm caused to others. Tucker v. Badoian, 376 Mass. 907, 916-917 (1978); DeSanctis v. Lynn Water & Sewer Comm., 423 Mass. 112, 116 (1996).
"Reasonableness is a question of fact for the [fact finder] whose decision is based on consideration of all the relevant circumstances including the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter." Trenz v. Town of Norwell, 68 Mass.App.Ct. 271, 275 (2007), quoting DeSanctis v. Lynn Water & Sewer Commn., 423 Mass. 112 (1996). The damages recoverable by a plaintiff are the same as those outlined above with regard to trespass.
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Two common theories of product liability in Massachusetts are (a) Breach of implied warranty of merchantability; and (b) Negligence.
Breach of Implied Warranty of Merchantability. To establish a breach of warranty claim one must prove:
(1) the defendant was a merchant; A merchant is defined as "a person who deals in goods of the kind or otherwise by his or her occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. G.L. c. 106, §2-104.
(2) the product was sold or leased; The warranty of merchantability applies only where the product was obtained through a particular type of transaction. Specifically, it arises only from (1) a sale of goods, (2) a contract for future sale of goods or (3) a lease of goods. It does not apply where a plaintiff is injured while driving an automobile before deciding to purchase it. Mason v. General Motors Corp., 397 Mass. 183 (1986).
(3) the plaintiff's use of the product was foreseeable; According to G.L.c 106, §2-314(2)(c), products must be "fit for the ordinary purposes for which such goods are used." Thus, the warranty does not apply to unforeseeable misuses of the product. Allen v. Chance Mfg. Co. Inc., 398 Mass. 32 (1986).
(4) the product was defective; and A defective product can be divided into three categories: (1) improper design; (2) improper manufacture; and (3) failure to warn.
(5) the defect was a proximate cause of the plaintiff's injury. The plaintiff has the burden of proving that the product defect was a proximate cause of the injuries sustained. Swartz v. General Motors Corp., 375 Mass. 628 (1978).
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A vendor of a product has a duty to exercise reasonable care in the sale, design and manufacture of a product. As with the standard negligence principles, the plaintiff must establish a duty to the plaintiff, breach of duty, proximate cause and damages.
The duty owed by the defendant is one of reasonable care, not perfection. Tibbetts v. Ford Motor Co., 4 Mass.App.Ct. 738 (1976). The plaintiff has one more burden than in a breach of warranty case. The plaintiff must prove both the defendant's conduct was unreasonable and that the product was unreasonably dangerous.
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The theory of liability ordinarily employed in medical malpractice litigation against physicians and other health care providers is negligence. In an action for medical malpractice, the plaintiff presents an offer of proof to a tribunal consisting of a single justice of the Superior Court, a duly licensed physician and an attorney. G.L. c. 231, §60B. The tribunal then determines if the evidence presented is sufficient to raise a legitimate question of liability appropriate for judicial inquiry. Id. "In order to raise such a question of liability, a medical malpractice plaintiff must show (1) the existence of a doctor or nurse-patient relationship, (2) that the performance of the doctor or nurse did not conform to good medical practice, and (3) that damage resulted there from." St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994).
If the case proceeds beyond the tribunal level, "[t]o prevail on a claim of medical malpractice, a plaintiff must establish the applicable standard of care and demonstrate both that a defendant physician breached that standard and that his breach caused the patient's harm." Palandjian v. Foster, 446 Mass. 100, 104, 842 N.E.2d 916 (2006).
The applicable standard of care is "whether the physician, if a general practitioner, has exercised the degree of care and skill of the average qualified practitioner." Id., quoting Brune v. Belinkoff, 354 Mass. 102, 109, 235 N.E.2d 793 (1968). A medical specialist must exercise "the standard of care and skill of the average member of the profession practicing the specialty." Id.
In a medical malpractice case, the plaintiff bears the burden of proving that the defendant's alleged negligence more likely than not caused an injury and ordinarily must produce expert testimony to meet that burden. See Glicklich v. Spievack, 16 Mass.App.Ct. 488, 492 (1983).
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The most common type of malpractice action brought against an attorney is for negligence. By accepting employment to give legal advice or render legal services, an attorney impliedly represents that he possesses the requisite degree of learning, skill, and ability necessary to the performance of the tasks he undertakes. The attorney has an obligation to represent his client competently and diligently, and as a general rule, may be held liable to his client for injuries sustained as a proximate result of his negligent performance of the duties imposed on him.
The rule in Massachusetts is that to prevail on a claim of negligence by an attorney, a client must demonstrate the following: that the attorney failed to exercise reasonable care and skill in handling the matter for which the attorney was retained, that the client incurred a loss, and that the attorney's negligence was the proximate cause of the loss.
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